D.C. Circuit Backs NLRB Micro-Unions | U.S. Chamber of Commerce

D.C. Circuit Backs NLRB Micro-Unions

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The United States Court of Appeals for the District of Columbia on July 11 issued a ruling that backed the National Labor Relations Board’s (NLRB) deeply flawed precedent that allows micro-unions in the workplace.  The court’s decision buttresses the findings of several other federal appeals courts and makes it likely that the NLRB’s micro-union policy will remain in place absent federal legislation rectifying this situation or a new Board ruling that restores its previous precedent. 

As this blog has noted on many occasions, the NLRB threw out decades of well-settled law regarding what is an “appropriate” collective bargaining unit when it handed down its decision in Specialty Healthcare in 2011.  In that decision, the Board abandoned the long-established preference for units representing all workers in a class or craft and instead decided that it would allow almost any bargaining unit suggested by a union, even micro unions made up of just a few workers.

Since issuing Specialty Healthcare, the Board has permitted micro-unions in a wide variety of workplaces including department stores, chain restaurants, car rental facilities, general aviation facilities, and factories, among others.  In one egregious example, the NLRB permitted a micro-union of just 162 maintenance workers at a Volkswagen plant in Chattanooga, TN, after the workers there had already voted down representation by a vote of 712-626.  The maintenance workers then voted in favor of the union, thus giving it the toehold it sought at the facility.

The reason for the NLRB’s position is relatively simple: the labor-friendly majority that dominated the Board for the last eight years assiduously tried to enact policies that would allow unions to have as many advantages as possible during organizing efforts.  Allowing unions to cherry-pick which employees to include in a proposed bargaining unit opened the door for gerrymandering workplace elections.  In doing so, the NLRB gave unions the ability to select certain groups of employees who might be more inclined to vote in favor of representation, regardless of whether the majority of other workers supported a union.

In the present case, the NLRB allowed just the riggers at a theater production company to organize at a Washington facility.  The employer—a company called Rhino—argued that the bargaining unit should have included its other employees such as audio/visual, camera, and construction workers.  However, the court disagreed, saying “[t]o be sure, Rhino has made a case that a bargaining unit consisting of all of its employees would have been statutorily ‘appropriate,’ as well. But that is not enough to show that the petitioned-for unit is inappropriate,” and it upheld the NLRB’s precedent under Specialty Healthcare.

Unfortunately, in June the Supreme Court declined to hear an appeal involving another employer impacted by Specialty Healthcare¸ and with the D.C. Circuit having weighed in on the issue, it would seem a judicial remedy is unlikely. 

Members of Congress have introduced legislation that would require the participation of an entire workplace in a representation election, and the House Appropriations Committee recently passed a funding bill for fiscal year 2018 that would prohibit the NLRB from enforcing its interpretation under Specialty Healthcare.  Either measure would be welcome news if enacted, but in the meantime, one hopes that the NLRB will reconsider this issue once it has a new majority willing to restore balance to labor law.